Beatt v Croydon Health Services NHS Trust

The Court of Appeal allowed the appellant doctor’s appeal against the Employment Appeal Tribunal and restored the Employment Tribunal’s findings that he had been automatically unfairly dismissed under section 103A of the Employment Rights Act 1996 for making protected disclosures. The tribunal had found that a number of the appellant’s disclosures about patient safety were qualifying and (under the law in force at the time) made in good faith, and that those disclosures were the principal reason for dismissal.

The court held that, for the purposes of section 103A, whether a disclosure is protected is an objective question for the tribunal and not merely a matter of what the employer believed. The EAT had erred in substituting its own view of causation and in treating the employer’s belief about protection as determinative. The Court of Appeal also restored the tribunal’s findings that three post-termination acts by the Trust (a press release, a referral/letter to the GMC and material placed before the Trust board) amounted to unlawful detriments under section 47B.

The tribunal’s provisional conclusions on remedy — that no Polkey reduction or contributory-fault deduction should be made — were left for the remedy hearing because no final remedy hearing had taken place.

Background and parties: The appellant, a consultant cardiologist employed by Croydon Health Services NHS Trust, was dismissed in September 2012 following disciplinary proceedings. He brought claims for unfair dismissal (including automatic unfair dismissal under the whistleblowing provisions), whistleblowing detriments under section 47B, and unpaid holiday. The Employment Tribunal (ET) found in October 2014 that he had made a number of protected disclosures and that those disclosures were the principal cause of his dismissal; it also upheld three post-termination detriments. The Trust’s appeal to the Employment Appeal Tribunal (EAT) succeeded in January 2016. The Court of Appeal heard the appellant’s appeal from the EAT.

Nature of the claim / relief sought: The claimant sought declarations and remedies for unfair dismissal (including automatic unfair dismissal under section 103A), remedies for consequential detriments under section 47B, and unpaid wages. On appeal he sought reinstatement of the ET’s liability findings and a direction for a remedy hearing.

Procedural history: Employment Tribunal judgment dated 24 October 2014 found automatic unfair dismissal under section 103A and unlawful post-termination detriments; Employment Appeal Tribunal (Judge Peter Clark) allowed the Trust’s appeal and remitted issues for re-hearing (19 January 2016); Court of Appeal (Underhill LJ, King LJ, Etherton MR) heard the appellant’s appeal and restored the ET’s liability findings (23 May 2017).

Issues framed:

• Whether the ET was entitled to find the appellant’s disclosures were qualifying and protected (including the good-faith requirement in force at the time).
• Whether the disclosures identified in the dismissal letter were the principal reason for dismissal for the purpose of section 103A, or whether the employer’s beliefs as to the disclosures’ status controlled the reason question.
• Whether post-termination acts (press release, communication to the GMC, report to the board) constituted unlawful detriments under section 47B.
• Ancillary issues directed to remedy: whether a Polkey deduction or contributory-fault reduction should apply.

Court’s reasoning (concise): The Court of Appeal held that the ET was entitled to find that the disclosures were qualifying and protected and that those disclosures were the principal factor operating on the decision-makers’ minds. Crucially, the court held that the question whether a disclosure is protected is for objective assessment by the tribunal; it is not sufficient for an employer to rely on its own mistaken belief that the disclosure was not protected. The EAT’s approach improperly treated the employer’s belief as determinative and misapplied the causation test in this statutory context. Because the dismissal letter and disciplinary findings expressly relied on the appellant’s disclosures, the ET was entitled to conclude those disclosures were the operative cause. The ET’s findings that the press release, the GMC referral/letter and the board report were materially influenced by protected disclosures and therefore unlawful detriments were also restored. The ET’s provisional conclusions on Polkey and contributory fault were left for the remedy stage.

Appeal allowed. The Court of Appeal restored the Employment Tribunal’s findings that the claimant had made qualifying and protected disclosures which were the principal reason for dismissal under section 103A of the Employment Rights Act 1996, and that certain post-termination acts by the Trust amounted to unlawful detriments under section 47B. The court held that whether a disclosure is protected is an objective question for a tribunal and not determined solely by the employer’s belief; the EAT had erred in its approach to causation and the relevance of the employer’s beliefs.

Employment Tribunal judgment: 24 October 2014 – ET found automatic unfair dismissal under section 103A and unlawful post-termination detriments. Employment Appeal Tribunal (Judge Peter Clark) judgment: 19 January 2016 – EAT allowed the Trust’s appeal and remitted liability issues for re-hearing. Court of Appeal judgment: [2017] EWCA Civ 401 (23 May 2017) – this appeal allowed and ET findings restored.